Standing Committee F

[Mr. Joe Benton in the Chair]

Civil Contingencies Bill

Clause 22 - Limitations of emergency regulations

Richard Allan: I beg to move amendment No. 103, in
clause 22, page 15, line 38, leave out 'three' and insert 'one'.
 We seek to explore and test the limits of the emergency regulations, specifically in respect of offences that can be created and the penalties that can be applied under them. In order to provoke a debate and test the provision, we have suggested that the maximum penalty available for any offences committed under clause 21(3)(i) should be reduced from three months to one month. They are offences of failing to comply with the regulations or otherwise obstructing them. 
 This important provision needs to be highlighted in order to reassure the public about the nature of the emergency regulations. One of the biggest concerns is that people could be incarcerated indefinitely and all sorts of penalties applied. My reading of the way in which the various clauses work together is that there are limited powers in respect of anything that can be done to people who breach the emergency regulations. I wish to test the circumstances under which the offences could be invoked. 
 We must consider whether, in the kind of circumstances that have been described to date—for example, an emergency in which people must be prevented from entering or forced to leave an area—several offences could be committed during an incident in which an individual refuses to comply with the regulations. They might refuse to comply with the emergency regulations but might also be causing an affray, engaging in violent disorder or causing a breach of the peace. We are interested in the interaction of the offence of refusing to respect the regulations with other offences. 
 My hon. Friend the Member for Orkney and Shetland (Mr. Carmichael) and I had a discussion earlier that was educational for me and would have been educational for the Under-Secretary of State for the Home Department, the hon. Member for Slough (Fiona Mactaggart), but not, I suspect, for the Minister for the Cabinet Office and Chancellor of the Duchy of Lancaster. We were discussing the concept in Scottish law of thole an assize, which means that someone who has been prosecuted for one offence cannot be prosecuted for another offence that takes place during the same incident. Clearly, that would be relevant in this debate. If the Minister can stretch himself to English and Welsh law as well, I would be interested in how the regulations relate to that concept and how the legal process would work if 
 someone were in breach of several different regulations. 
 We talked about circumstances in which people refuse to move, or move where they should not. Other circumstances were described earlier; for example, around animal welfare and animal husbandry, when there were clear instances of individuals refusing to comply with the Government's requirements to destroy their animals. They took the matter to court, and some found judgment in their favour. Clearly, in a future incident, if powers were brought into play through the regulations set out in the Bill, someone might have a legal difficulty under animal welfare legislation but also under the regulations. Again, the interaction between the various pieces of law is what will be most important to individual members of the public. 
 I hope that the Minister can provide some clarification about when and how offences might be prosecuted, particularly how they relate to tholed assizes, or the English equivalent, which is the inability to prosecute twice for what is effectively the same set of circumstances, and in doing so give us an assurance that where a more grievous offence has been committed, it is the more grievous offence in normal law that is prosecuted, not the less grievous offence under the emergency regulations.

Oliver Heald: When we discussed the offences, the Under-Secretary said that some might be drafted in such a way as to allow recklessness or negligence to be one of their ingredients. Such an offence might show not knowledge, but that someone had been reckless in breaching the provisions. There could be a range of tests for such offences, and we suggested ''knowingly'' as an added ingredient.
 Is the Minister satisfied that clause 21(3)(i) will allow us to create offences that could be more or less serious, depending on the exact ingredients that were included when the regulations were made? For example, paragraph (i)(i) refers to 
''failing to comply with a provision of the regulations'',
 which could be a strict liability offence. If so, would it not be right for the penalty to be somewhat less than that which would apply if the provisions referred to ''failing to comply with a provision of the regulations with intent''? Similarly, the Minister may create a range of offences under sub-paragraphs (ii) and (iii). Different penalties could apply, depending on whether someone negligently, recklessly or intentionally failed to comply. 
 I would be grateful if the Minister could tell us what he and his officials think the template for such penalties would be. I do not see much problem with a maximum penalty of three months, which is a modest term of imprisonment.

John Horam: Given his knowledge of the issue, does my hon. Friend know whether there is a precedent for the term in the Bill? Why is it three months? Is there any evidence to suggest that that is the appropriate term?

Oliver Heald: A range of offences carries a maximum penalty of three months. Those are minor offences, although, obviously, no offence is a minor matter. The maximum penalty in a magistrates court is six months, and the penalties that we are discussing are half of that, so that gives us a feeling of what three months represents.
 It would be helpful if the Minister could explain whether three months is seen as the maximum term for all the offences, or whether he has in mind strict liability offences that carry a one-month maximum term or, perhaps, only a purely financial penalty. Are the Government saying that there will be just three offences, all of which will carry a maximum penalty of three months and a set level of fine, but that they have not worked out whether recklessness, negligence or intention will be the mental element? Are they saying that there will not be a family of offences as regards failing to comply, but just one, and that the same will apply to the other provisions? The Minister might also tell us what he thinks would happen in a serious case. Is he relying on provisions for other offences, such as those relating to affray or civil disorder?

Alistair Carmichael: I was going to keep my remarks for the clause stand part debate, but they are germane to what has just been said.
 I wish to explore the reasons for these offences being triable only summarily. That follows on naturally from the last point made by the hon. Member for North-East Hertfordshire (Mr. Heald). It may be an unintended consequence of the offence being triable only summarily that it would attract a six-month time bar for prosecution. I would be interested to know if that is the case as it would affect a very small number of cases, certainly in Scots law. It may also lead to some procedural difficulties, which are always something to bear in mind. Will the Minister confirm that that would mean that it could never appear on an indictment? If an offence under this section were to run alongside more serious cases it may be necessary to level charges under this section for evidential purposes. Presumably, that would not be available to the prosecution. I would be interested to explore with the Minister his reasons for framing the provision in this fairly restrictive manner.

Oliver Heald: The present offences under the Emergency Powers Act 1920 carry a maximum of three months, or a fine not exceeding level 5. Does the hon. Gentleman think it is possible that the Minister has said, ''Well, we will just do what we have always done''?

Alistair Carmichael: The Minister can tell us his own thoughts, and I would never presume to second-guess them. I presumed for my own part that what we were in the business of doing here was creating a summary offence, for which three months for a first offence, and six months for any subsequent offence would be the normal statutory maximum under criminal procedure legislation. I think the level 5 fine is also the same so I was not particularly surprised to see that in the Bill.

Elfyn Llwyd: Subsection 3(i)(i) clearly creates an absolute offence,
 and the Minister might confirm that. If it creates an absolute offence, are we happy that the regulations will be known to those persons who transgress? After all, we are dealing with an emergency situation, and the last thing anybody in this Committee—and, I am sure, across the House—wants to do is to criminalise people who did not know that e emergency regulations had come in. Will the Minister tell us how the regulations will be made known to the public, since it is incumbent on us as lawmakers not only to make good law, but to make good law that is known to people who might inadvertently break it?
 I have no problem with sub-paragraphs (ii) and (iii), because there is an element of wilfulness, of mens rea in there. Sub-paragraph (ii) says: 
''failing to comply with a direction'',
 which makes it is quite plain that the person would have had a direction. Likewise, with the words ''obstructing a person'', the person obstructed would undoubtedly have advised the person obstructing that an offence was being committed. I have no problem with that. However, I am very concerned about the first limb. We may inadvertently criminalise many people who might not know that what they are doing transgresses emergency regulations.

Douglas Alexander: Let me set out the context in which I will seek to respond to each individual point. It is worth my recapping the limits in the Bill on the creation of criminal offences.
 The only offences that can be created are failure to comply with the regulations, as has been commented on, failure to comply with a direction or order given under the regulations, or obstructing a person in the performance of a function under the regulations. The penalty that may be imposed for such an offence is limited, and any offence created by the regulations must be summary-only offences, triable in the magistrates court or, as the hon. Member for Orkney and Shetland said, the sheriff court in Scotland. 
 In relation to the penalties and amendment No. 103, which the Government do not support, the maximum penalty will be imprisonment for three months or a fine not exceeding level 5 on the standard scale, which is currently £5,000. That does not mean that such a penalty will be the maximum for each criminal offence created by the regulations, nor does it mean that a court will impose such a penalty whenever someone is convicted of an offence under the regulations. Each case will depend on the circumstances, but that relatively low penalty appears to be an appropriate maximum. 
 The hon. Member for Orpington (Mr. Horam) asked for a precedent. The penalty reflects the maximum penalty for offences created under the Emergency Powers Act 1920. 
 A maximum penalty of only one month could be seen as too small a disincentive to prevent the breach of regulations under inevitably serious circumstances, especially when such a breach may have significant 
 implications for response efforts in such an extraordinarily serious situation. Retaining the flexibility to allow for a maximum sentence of up to three months where appropriate is reasonable and proportionate. 
 While the hon. Member for North-East Hertfordshire was making his point, I was dredging my memory for delict evidence, as I often did at Edinburgh university, and criminal law. In terms of the distinction between mens rea and actus reus, his point was fair. The Bill is an enabling Bill and sets out the limits of the power. It will be possible to mix elements and penalties where appropriate, depending on the nature of the offence in any particular situation.

Alistair Carmichael: Can the Minister confirm that although the offence in clause 21(3)(i)(i), which is
''failing to comply with a provision of the regulations'',
 is, on the face of it, a strict liability offence, it would be possible, within the regulations promulgated, to incorporate defences? That relates to the point that the hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd) made.

Douglas Alexander: I will come to that.
 On the point about tholing the assizes and multiple offences, my understanding is that it would be for the Crown Prosecution Service to determine south of the border which offences to prosecute and where they overlap. The particular point that relates to Scotland is whether the issue would be deal with on indictment or by summary procedure in the Scottish courts. However, there is no divergence from the standard procedure, which is adopted by the Crown Office and the Lord Advocate, as set out in the Bill. 
 On who would decide the limit, within the three months it would be for Ministers to determine the nature of the offences under the particular circumstances. We have set out a maximum limit of three months in the enabling legislation, but there is scope for a lesser period, depending on the nature of the offences. The courts would obviously then determine the circumstances of the offence in question. 
 In relation to offences created under the regulations and whether they might overlap, I have already said that there could be circumstances where, for example, someone had deliberately broken quarantine, knowing that they had a contagious disease. That may give rise to liability under offences-against-the-person legislation. There could be circumstances in which there is an overlap between the regulations and a breach of other legal obligations under which the individual is bound. 
 The decision to make the offences summary only reflects the precedent of the 1920 Act. It is not appropriate to be able to create more serious offences by way of secondary legislation. I therefore hope that the proposals will find favour on both sides of the Committee. 
 On information about the regulations, if emergency powers are used, the Government will take every reasonable measure possible to ensure that the public are aware of the situation. Clear and accurate communication about the effects of emergency 
 regulations and the reasons for their introduction is essential. Arrangements for communicating with the public in such situations are well established and have been the subject of recent debates in the Committee.

Elfyn Llwyd: I accept what the Minister is saying, but during the unfortunate recent foot and mouth outbreak, some farmers in parts of Wales were told one thing and others were told another. Nobody knew from one day to the next what the true position was. There must be a high threshold of information if we are to criminalise people, that will mean a departure from previous experience.

Douglas Alexander: I take the hon. Gentleman's point. I am fully aware that the foot and mouth outbreak gave rise to serious concerns, and lessons have been learnt from it. The thrust of the Bill reflects that, by ensuring preparedness as well as effective co-ordination between messages generated centrally by government and the response and action on the ground.
 In policy terms, we seriously considering the challenge of communications. It might help if I write to the hon. Gentleman on his specific point about the difference between mens rea and actus reus, so that he has the assurance that he seeks. It is not simply a matter of principle, but, as he says, it will be a practical issue in terms of the information that is given.

Oliver Heald: There has been a good deal of discussion in the Committee about public information, but surely learning the basics could be part of the national curriculum, or the citizenship part of the national curriculum: for instance, that could be as simple as teaching that if the Government declare an emergency, it will be an offence not to do as one is told. Past generations have experience of emergencies, and I suppose that that is in the folk memory of my generation, in the sense that my parents remember the war. However, the population that is growing up has no experience of such things. Can we not do something in the schools to alert people to the basic points?

Douglas Alexander: I am intrigued by the hon. Gentleman's point. First, I should place our deliberations this afternoon in context. I trust that these instances will be extremely rare. I focused on citizenship, but the curriculum deals with a far more regular and established pattern of issues that every child who benefits from citizenship education would encounter.
 An appropriate balance must be struck between the trusted intermediaries of information, who are often local communicators, be they local responders in the emergency services in the immediate circumstances of an incident or local channels of communication who work closely with the BBC on connecting in a crisis and produce the documentation and information made available to people. I would be anxious to maintain that balance if our approach to basic common-sense advice in a crisis appeared overly draconian and heavy-handed. 
 The whole foundation of the communication with the public must be to provide the information that they need, which can vary markedly according to the circumstances of the crisis. I therefore maintain that we want a public who are alert but not alarmed. I 
 would need to be persuaded of the hon. Gentleman's case that communicating further information in terms of legality about emergencies would alert rather than alarm the public. 
 Therefore, we must make sure that the public is alert but not alarmed and that the information being communicated is relevant and appropriate to the circumstances encountered.

Patrick Mercer: I want to take that point a little further. The Minister makes it clear that instances will be extraordinarily rare, and so one hopes and prays. In those extraordinarily rare circumstances, it will be crucial that people know how to react. The Minister says that bringing children into the envelope of knowledge may alarm them, but Firewatch is training small children on how to deal with what we hope will be the extremely rare and unusual circumstance of tipping boiling chip fat over themselves. In those unusual circumstances, children know how to react, albeit counter-intuitively. Would it not make sense for people to be aware of extraordinary circumstances so that there is less room for panic?

Douglas Alexander: I appreciate that the hon. Gentleman sought to paraphrase my remarks, but he should be careful to ensure accuracy. I said that we need to ensure that the information that we share with the public strikes a balance of informing people, but not alarming them unnecessarily. If communication were not appropriate and appeared threatening rather than helpful, constructive and informative, it could achieve an objective that none of us would seek. We seek to ensure that the right information is communicated at the right time to the right people.
 On the basis of past experience, the evidence suggests that the British people have responded in a common-sense and serious manner to advice given at the scene of an incident by the emergency services. If it is necessary to share specific information with a wider community of interests in the event of the kind of catastrophic incident that we anticipate, there are tried and tested methodologies and mechanisms by which information can be shared. 
 It is something of a red herring to say that a central element of that communication is the issue of legality. The central foundation of that communication has to be public safety, which should inform the central thrust of the communications challenge the Government take up.

Richard Allan: The amendment was intended to provoke a debate, and we have had some useful contributions. I especially like the Minister's phrase, ''Be alert, not alarmed''. It reminds me of that old graffito, ''Be alert, Britain needs lerts''. I think I got that from my mother—it is of second world war vintage.
 We have explored the substance of the offences usefully, so I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn. 
 Clause 22 ordered to stand part of the Bill.

Clause 23 - Regional and Emergency Coordinators

Patrick Mercer: I beg to move amendment No. 128, in
clause 23, page 16, line 10, at end insert— 
 '(d) competence and demonstration of said competence'.
 It is nice to see you back in the Chair, Mr. Benton, in this Room, which is much cosier than the one we used previously. 
 I trust that amendment No. 28 is relatively simple. The clause refers to regional and emergency co-ordinators and states: 
''Emergency regulations must require a senior Minister of the Crown to appoint''
 emergency co-ordinators and regional nominated co-ordinators. It goes on to say that in accordance with subsection (1) the provision may 
''in particular, include provision about the coordinator's . . . terms of appointment . . . conditions of service (including remuneration), and . . . functions.''
 The amendment would include, in a new paragraph (d), 
''competence and demonstration of said competence''.
 It is fairly clear that the co-ordinator has laid down his or her terms of appointment, the money that they will get and what they are expected to do, but nowhere in the provisions are we assured that the person will be physically competent for the job. Who might be a regional co-ordinator? What tests are there to ensure that the person will be up to the job? 
 The question stands comparison with the issue of how competence and training take place under the control of major accident hazards—COMA—regulations. That duty is discharged under legislation dealing with industrial and commercial sites. Each industrial site must ensure and demonstrate that its staff are competent to perform their safety and critical duties. Such sites must demonstrate safe systems procedures, correct performance, safety behaviours and attitudes, emergency response procedures, competence to provide safety critical tasks, and so on. Under the COMA regulations, a duty is imposed to carry out training to ensure that those things will happen. 
 Who will the individual co-ordinator be? We have talked endlessly—I have bored endlessly—about the nature of an emergency. It would be helpful if the Minister could illuminate us as to who the individual is to be, and convince us that that person will be competent to handle an emergency. Might it, for example, be a local government officer? If so, how do we know that he or she will have any competence in dealing with disaster? 
 Who else could it be? Could it be the regional territorial army commander? Is he or she likely to be competent? Yes, probably. It would be reassuring if we could have some indication from the Minister about not just what the person will be paid, what he or she will be expected to do and how long the contract will 
 last, but who it is to be, so that we can be sure that we are not sending a boy to do a man's job.

Douglas Alexander: That seemed a curiously ageist comment on which to end what was otherwise a useful contribution. This is not an amendment that the Government can support, so we will resist it. The current emergency powers framework has always allowed central Government to confer responsibilities and delegate powers to deal with an emergency. The Bill does not change that. The regional nominated co-ordinators will be the focus for many of the new powers, delivering greater transparency and accountability. Such people will co-ordinate efforts at a regional level, providing strategic overview and a focus for media handling—a role that previous emergencies have shown to be vital. They will be able to act only within strict parameters: the powers given in emergency regulations. RNCs will be directly accountable to Ministers and, through them, to Parliament.
 Regional and emergency co-ordinators will have three broad areas of expertise: subject matter specialisation—for example, public health—crisis management expertise and regional knowledge. All will be trained crisis managers with considerable leadership skills and personal authority. Establishing the right mix of skills will be a task for the planning phase during which the nomination will take place. Training will be tailored to build up the nominees' capabilities in the three identified areas to ensure that they can function effectively in any of them. 
 There is no question that RNCs will be appointed on any basis other than their competence to do the job, and that level of competence will be set very high, as befits such a significant post. I was challenged to name typical RNCs. Clearly, it is difficult to generalise, as it will depend on circumstances. However, it might be the chief constable of a region, a senior army officer from a local brigade, as was suggested, a senior regional officer from the state veterinary service, a regional director of public health or a director from a regional government office. 
 Reference was made to the control of major accident hazards regulations. Those cover very specific technical areas that are not, I would suggest, directly analogous to those to be handled by the RNCs. The circumstances that we are trying to anticipate vary widely. However, the basic point holds good. We need to ensure that there are competencies in every area; it would be otiose to put a general statement in the Bill when we are considering a range of qualities.

Patrick Mercer: Does a list of people already exist?

Douglas Alexander: Work is under way in Government. We are seeking to develop a comprehensive list that encapsulates Government Departments' awareness of technical experts in their own areas of responsibility, such as public health or animal health. That will be matched with the effort to ensure that in each region of the United Kingdom we have people with the requisite skills and experience of or training in crisis management. I can assure that hon. Gentleman that that work is under way. There have been positive
 experiences in the past—consider the foot and mouth crisis in Cumbria, from which we learned a great deal about what makes for effective co-ordination across geographic boundaries and liaison with central Government. Since then, we have progressed work that explains both the statutory framework that we are putting before the Committee and the work that has been done within Government Departments.

Elfyn Llwyd: When the Joint Committee considered the draft Bill, it contained a let-out allowing the Government not to consult the National Assembly, the Scottish Parliament or the Northern Ireland Assembly on matters of urgency. That let-out was deleted early in the Bill in clauses that related to designated areas of emergency, but it seems to have reappeared in another form under this clause. What is the logic of saying that the urgency clause should be dropped in favour of the absolute duty to consult the devolved Administrations when declaring an emergency, yet leaving it to cover the appointment of the regional co-ordinator? To be fair, the Government accepted the arguments about the other urgency clause.

Douglas Alexander: I am intrigued by the hon. Gentleman's point. With the forbearance of the Committee, I shall write to him. I took note of his first point about consulting the National Assembly and the Scottish Parliament.

Oliver Heald: Subsection (1)(a) talks about emergency co-ordinators for a ''Part''. I understand that ''Part'' is a country. Is the Minister satisfied that that would work well? England, for example, has a much larger population than, say, Wales. Is he satisfied that giving each country an emergency co-ordinator is a proper way of dividing up the United Kingdom for these purposes and, if he is, will he explain why?

Douglas Alexander: I hope that I can clarify those points. First, England could have regional co-ordinators who work at a regional level in England. In that sense, the appropriate comparison would be between a region of England and parts of the UK—in this case Scotland and, as the hon. Gentleman said, Wales—where the emergency co-ordinators would otherwise operate.

John Horam: I presume that the Minister is referring to the standard regions when he talks about the regions of England.

Douglas Alexander: There is a statutory basis for the regions, which I will happily share with members of the Committee. ''Part'' means England, Wales, Northern Ireland and Scotland, and ''region'' was defined in the Regional Development Agencies Act 1998. There are nine such regions: east midlands, eastern, London, north-east, north-west, south-east, south-west, west midlands, and Yorkshire and Humber.
 The only other point that I want to make while I am still on my feet relates to the Welsh and Scottish Assemblies. I understand that a concordat was drawn up, which will form the basis of my letter about the operation of emergency co-ordinators and the relationship between the devolved Administrations in 
 Scotland and Wales and central Government in the UK.

Elfyn Llwyd: I am grateful to the Minister for responding so reasonably. However, if clause 28(4)(a) remains, surely that will undermine the concordat when a case is perceived to be urgent?

Douglas Alexander: Concordats are being drawn up at the moment, so the hon. Gentleman's intervention may be timely. I will ensure that I will address that point in my letter to him.

Patrick Mercer: The Minister has explained extremely clearly and concisely why the Government will resist the amendment. I feel a little easier now that the Minister has told us that work is already being undertaken to identify these various individuals, who will be required to demonstrate experience and confidence in three different fields. He did not, however, answer my question about whether these people would be told that they were going to be on this list.
Mr. Alexander indicated assent.

Patrick Mercer: The Minister is nodding, so I assume that they will be told. I very much hope that the list will be kept up to date and that the incoming regional brigadiers will become fully aware of exactly what their duties will be in an emergency. On that basis, I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Question proposed, That the clause stand part of the Bill.

Elfyn Llwyd: I refer the Minister to what the National Council for Civil Protection has said. I quote verbatim from the question put to me. It says:
''If an emergency is affecting a region so severely that Ministers have decided it is necessary to apply Emergency Powers, then it should be a democratically elected Minister who chairs the strategic decision making group and is subsequently accountable for the actions taken, rather than an appointed official such as a Chief Constable.''
 It goes on: 
''This is in line with existing 'Lead Government Department' arrangements for central government's involvement in emergencies, which are proposed to continue. If Emergency Powers are declared, then it follows that the central government is involved, so the appropriate government department must be leading, and at the head of each government department is a Minister.''
 I ask the Minister to respond to that.

Douglas Alexander: I am in dangerous waters in describing the relative merits of Ministers and competent officials. I will, none the less, seek to make some progress. The first point I make is that clearly, under our parliamentary system, Ministers are accountable for all actions under emergency regulations. That will include the appointment and functions of the regional nominated co-ordinators.
 I think, therefore, that there is a genuine disagreement between ourselves and the submission that the hon. Gentleman referred to. We are keen to uphold the lead Government Department principle, in the sense that one of the bodies charged with 
 responsibility for drawing up the list of people will be lead Departments. For example, the Department for Environment, Food and Rural Affairs will have responsibility on animal health and the Department of Health on public health. There will continue to be a direct involvement for the lead Departments. 
 On the other hand, we wanted to ensure that accountability was secured to Parliament over ministerial decisions. The Minister will be responsible for the appointment of the regional nominated co-ordinator. To suggest that there should be another structure with a regional level of accountability could confuse the degree of clarity that is valuable in ensuring that the Minister responsible will be accountable to this House for ensuring that the right person has been appointed. 
 To cover the ground that I have touched on, the individual appointed by the Minister to the post would be selected on the basis of specific expertise. Rather than, for example, the democratic mandate secured for an individual in one locality, it would be the technical expertise of the individual that would be an important element in their ability to exercise the personal authority necessary in an emergency. In that sense, I do not think that that usurps the role of local democracy. It supplements the democratic accountability of a Minister to this place with a degree of technical expertise that is in keeping with command authority in difficult circumstances—in the event of a contingency. 
 Question put and agreed to. 
 Clause 23 ordered to stand part of the Bill.

Clause 24 - Establishment of tribunal

Question proposed, That the clause stand part of the Bill.

Oliver Heald: This is a clause that I have some concerns over. I hope that the Minister may be able to allay them. On the face of it, the clause attempts to give a role to the Council on Tribunals in the setting up of one of the tribunals that we discussed this morning under emergency regulations. It seems to give with one hand and take away with the other.
 Subsection (1) says: 
''Emergency regulations that establish a tribunal may not be made unless a senior Minister of the Crown has consulted the Council on Tribunals.''
 That sounds as though the council will be doing something. Then subsection (2)(a) says: 
''a senior Minister of the Crown may disapply subsection (1) if he thinks it necessary by reason of urgency''.
 We already know that there is no possibility of looking into the Minister's thoughts. As long ago as 1942, in the case of Liversidge v. Anderson, which was referred to on Second Reading by the hon. Member for Stone (Mr. Cash), it was established that these are matters of Executive discretion and not justiciable. It seems that a senior Minister of the Crown—as we know that includes the Whips—could say that there was not time and that would be the end of that. Clause 24(2)(c) states: 
''a failure to satisfy subsection (1) shall not affect the validity of regulations.''
 The regulations would be in place even if the Minister or Whip had got it wrong by saying that they did not think that there was time for consultation. 
 Then we come to section (3): 
''Where the Council on Tribunals are consulted by a senior Minister . . . the Council shall make a report''.
 It goes on to state in paragraph (b) that 
''the Minister shall not make the emergency regulations to which the consultation relates before receiving the Council's report.''
 One would think that that may be a case where the council has some power and its report matters. However, section (4) states: 
''But . . . a senior Minister of the crown may disapply subsection (3)(b) if he thinks it necessary by reason of urgency''.
 Again, we cannot look behind his thoughts because, as Liversidge v. Anderson established, it is a matter of Executive discretion and Ministers can do as they like. 
 Subsection (2)(b) states: 
''subsection (1) shall not apply where the Council on Tribunals have consented to the establishment of the Tribunal''.
 The purpose of subsection (1) is to persuade Ministers to consult the Council on Tribunals. One must ask how the council can have consented if it has not been consulted. The clause is curious and somewhat confusing, although perhaps just to me. Will the Minister explain whether the Council on Tribunals has any significant role to play in proceedings or whether it is just a bit of window dressing?

Richard Allan: I share the concerns of the hon. Member for North-East Hertfordshire about whether the clause is a toothless tiger and whether it has any force. Another aspect of subsection (2)(b) also worried me—the circumstances in which the Council on Tribunals could consent or in other words simply say, ''Yes; we do not need to be consulted.'' If the Government intend to give the council the option to say just a flat yes we will miss out on subsection (5), which is important. Once the council had been consulted, various reports would tell us what it thought, the extent to which the regulations met its expectations and so on. It would also be important to receive an explanation regarding any departures from the recommendations in the report.
 I hope that the Minister can assure us that clause 24(2)(b) will be tightened up. We must remember that any tribunals set up under emergency regulations are set up in extreme circumstances. Tribunals should be available to cover most normal circumstances, so we are talking about a very special tribunal in that regard. Such a tribunal may be able to decide on the fate of flocks of sheep, for instance, which may be of great importance to individuals or to human health, in terms of vaccination, quarantine and so on. He should assure us that in such circumstances, there is no cop- out whereby the Council on Tribunals can say ''Go ahead'' without our seeing a report on its reasoning or on whether the regulations met its expectations. As I read it, subsection (2)(b) suggests that that is precisely what would happen.

Alistair Carmichael: May I remind the Committee that we are talking about the establishment of tribunals? I can understand the urgency associated with a forest fire or some massive disease that requires sudden and draconian action on the ground, but I cannot for the life of me imagine a circumstance in which the Minister would be dragged from his bed at three o'clock in the morning and told that he had to set up a tribunal and that it could not wait until after breakfast. The application of urgency in the context of setting up tribunals seems a bit more than is absolutely necessary.
 I am also somewhat puzzled by the construction of subsections (2)(a) and (c). Paragraph (a) states: 
''a senior Minister of the Crown may disapply subsection (1)''—
 the consultation of the Council on Tribunals— 
''if he thinks it necessary by reason of urgency''.
 I cannot quite think what such a reason would be, and I suspect that even the Minister or Under-Secretary would be pushed to come up with an example. Paragraph (c) states: 
''a failure to satisfy subsection (1) shall not affect the validity of regulations.''
 Presumably, the only regulations to which a failure to satisfy subsection (1) can relate are those establishing a tribunal. To my mind, that negates the purpose of subsection (2)(a), which disapplies subsection (1) by reason of urgency. Paragraph (c) seems to suggest that the provision can be disregarded anyway, whether it is urgent or not, and that the tribunal that is subsequently established remains valid whether or not there has been consultation with the Council on Tribunals. 
 Subsection (2) is inelegantly drafted and the power is not absolutely necessary, and I hope that between now and Report the Minister might reconsider the clause and table some amendments.

Douglas Alexander: I am always intrigued to know which provisions generate the greatest heat, and I hope that I can throw some light on the discussions. The hon. Member for North-East Hertfordshire started by asserting that it is never impossible to see beyond the decision of a Minister into their mind, so in the spirit of candour, let me share the rationale behind the clause.
 I was relatively safely navigating my way through an appearance before the Joint Committee on the Draft Civil Contingencies Bill back in September, when the noble Lord Archer of Sandwell put a very specific question to me. He inquired whether I had considered consulting the Council on Tribunals. I was not aware at that point—although I became aware very shortly afterwards—that he was a former president of the council. When I returned to my Department after the rather uncomfortable questioning that I had received, I made inquiries about whether there had been consultation with the Council on Tribunals. It transpired that a meeting took place after my appearance to give evidence, and the statutory construction before us—the Bill that was duly published—reflects the statutory precedents that were provided in discussion with the Council on 
 Tribunals. As a Minister, I accept responsibility for everything, but responsibility for the inelegance of this particular provision may be shared between the council and ourselves. 
 That gives me the opportunity to deal with another substantive point made by the hon. Member for North-East Hertfordshire. Today, I have written a letter to the shadow Attorney-General, who has been in discussion with me, on the matter of Liversidge v. Anderson. Again, in the spirit of candour, it would be helpful if I explained the Government's thinking on that case law, which was quoted on Second Reading. I hope that that will prevent the same red herring from appearing any more prominently than it has done so far in the course of our discussions. 
 We have concluded that reasonableness is an absolute expectation of the actions of Ministers and a basic tenet of public law. That judgment is informed by the case of Liversidge v. Anderson and subsequent case law that was put to us on Second Reading. We are satisfied that it is now accepted that the dissenting judgment of Lord Atkin is good law and that the courts will inquire as to the reasonableness of a Minister's belief in the circumstances described. 
 Lord Bridge of Harwich, in Bryn v. Secretary of State for the Home Department, 1991, paragraph 1AC 696, in the House of Lords, emphasises the strength of judicial review and asserts that specific requirements in specific cases are best left to be absorbed by that general and all-embracing concept. The great weight that has been placed on Liversidge v. Anderson suggests that the issue haunts all tenets of public law in the United Kingdom and that they are not valid. The reasonableness test has been addressed in subsequent case law. The statutory construction of the provisions reflects the statutory precedents that were put to us by the Council on Tribunals. 
 The tribunal would decide whether the Council on Tribunals could subsequently be ignored under clause 24(2)(b), although I find it hard to envisage circumstances in which the council would consent in cases where the tribunal has no major role and no subsequent role in reviewing the position. Clearly, the matter would primarily be for the council. 
 Finally, the hon. Member for Orkney and Shetland challenged me to suggest circumstances in which it could be necessary urgently to establish a tribunal, as opposed to merely taking other actions. A tribunal that is set up to approve quarantining is one example; in the event of appeals against quarantining being made during a major infectious disease outbreak or another such civil contingency, people would expect a tribunal to be set up in a matter of days or weeks. The urgency of the situation would be dictated by the contingency in question.

Alistair Carmichael: Before we move on, may I ask the Minister whether he is satisfied that my interpretation of clause 24(2)(c) is correct? One can disregard subsection (1) for whatever reason, and if one does so it does not really matter. In that case, why should we have subsection (1) at all?

Douglas Alexander: The provision reflects the fact that we are trying to strike a balance between the need to move with great expedition and a recognition of the enduring role of the Council on Tribunals. However, I accept the hon. Gentleman's point about the vital caveat that Ministers would remain accountable to Parliament for any decisions taken in relation to tribunals or indeed actions taken under the regulations. We have adopted that approach to ensure that the regulations established in the tribunal have legal certainty, which is surely a matter that we can all agree on, and it would be inappropriate for the regulations establishing tribunals to be struck down months or indeed years after they have been set up. A fundamental question is what would then happen to the judgments made by tribunals in the meantime, and in that regard, it is important to bring the maximum degree of legal certainty to a tribunal's operations.

Oliver Heald: On duration—obviously, we are going to have a full debate on it in a moment—clause 25 provides that the emergency regulations shall last for 30 days unless they are renewed. Surely, it will take longer than that to set up a tribunal—or is that not the case? Is the Minister thinking that, as the firemen are going in or the Army is dealing with a terrorist situation, a tribunal will be set up almost immediately, within a matter of days? Furthermore, when the emergency regulations lapse, does the tribunal lapse at the same time? How does that work?

Douglas Alexander: I return to one of my core propositions: it is difficult to anticipate every circumstance that could arise. We would certainly anticipate that, in the circumstances that I have described, it would be possible to establish a tribunal in respect of quarantine restrictions fairly quickly, but I do not wish to be drawn on how quickly a tribunal could be established without being clear as to what the particular circumstances are.
 Although regulations create a tribunal, the Interpretation Act 1978 will not continue in existence a tribunal created by emergency regulations after those regulations collapse. It is therefore likely that further legislation would be needed to continue in existence any tribunal created by emergency regulation. That deals with the hon. Gentleman's substantive second question. 
 Question put and agreed to. 
 Clause 24 ordered to stand part of the Bill.

Clause 25 - Duration

Richard Allan: I beg to move amendment No. 121, in
clause 25, page 17, line 11, at end insert 
 ', or 
 (c) when a senior Minister of the Crown determines that the conditions specified in section 20 are no longer satisfied.'.

Joe Benton: With this it will be convenient to discuss the following amendments: No. 122, in
clause 25, page 17, line 12, leave out from end to beginning of line 14.
 No. 105, in 
clause 25, page 17, line 15, at end add— 
 '(3) Where emergency regulations are made and thereafter new regulations are made, the series of regulations shall lapse after 90 days and new regulations shall not be made thereafter under this Part in respect of the emergency.'.
 No. 106, in 
clause 26, page 17, line 40, at beginning insert 
 'Subject to section 25(3) of this Act'.
 No. 124, in 
clause 26, page 17, line 40, leave out from end to beginning of line 42.
 No. 129, in 
clause 26, page 17, line 41, leave out paragraph (a).

Richard Allan: Amendment No. 121 is an unusual example of us offering to give the Minister and the Crown more, rather than less, power. Normally we spend our time in these Committees trying to strike out powers exercisable by Ministers and saying that everything should be in regulations, but under these circumstances we think that it would be appropriate for a Minister to have the power to end their extra-constitutional and extra-parliamentary activity, that is, the emergency regulations that they brought into play. As we read the clause, there are only two circumstances in which the regulations would lapse: at the end of 30 days, which we accept as a sensible safeguard, or at a time specified in the regulations—in other words, if the regulations themselves state that the power exists only for, say, 15, 20 or 25 days.
 We think that a third option should be available to Ministers. They should be able to say, ''Okay, we haven't reached the 30 days''—or the 25 days—''but the emergency is over.'' We can imagine circumstances in which an emergency is predicted to be more severe than it turns out to be. In those circumstances, it would be sensible for a Minister to be able to say after five or 10 days that the regulations had lapsed. That would put an extra limitation on the force of the emergency regulations and would be helpful in this context. I hope that the Minister can accept amendment No. 121 in the helpful spirit in which it is intended, and that he will respond positively. 
 The spirit of amendment No. 121 might be acceptable, but I suspect that amendments Nos. 122 and 124 are less acceptable. They would remove the ability to make new regulations after 30 days and to extend the powers beyond that time. We think that that is an important area to explore. We understand that the emergency regulations, as introduced outwith Parliament by the Executive, have to be brought to Parliament within seven days. That is entirely sensible and under normal circumstances, in which the Government have a parliamentary majority, one would expect Parliament to approve those emergency regulations, but we do not want continued extensions to the emergency regulations. If the Executive were able to get parliamentary approval for that, it would not be unconstitutional. However, we believe that that is a far less satisfactory solution than specifying that, after the initial period for which the emergency regulations have been in force, primary legislation must be sought. The example I cited before is the Anti-terrorism, Crime and Security Act 2001, which was a parliamentary constitutional response to the events of 
 11 September, and passed through both Houses of Parliament quite rapidly. 
 In seeking to remove the Government's ability to extend their emergency regulations, we do not seek to deny them the ability to continue with the kinds of powers that they need in an emergency. Instead, we are suggesting that the powers should be dealt with only through primary or secondary legislation, in the normal way, rather than by extending emergency regulations again and again. We think that there would be a temptation to do that. The Government could cite a lack of parliamentary time or the fact that getting the provisions through Parliament would be more difficult and that it would be more straightforward simply to approve an extended emergency regulation. We are trying to assist the Government by leading them out of the valley of temptation into pastures in which they would have to come forward with primary or secondary legislation—that is a mixed biblical reference. Essentially, we are trying to limit Ministers' options in those circumstances. 
 Amendment No. 121 offers Ministers an additional power and I hope that the Minister approves of that. It is a power to self-limit. Amendments Nos. 122 and 124 are quite clearly trying to limit Ministers. We think that the limitation would be sensible and would ensure that parliamentary sovereignty is maintained.

Oliver Heald: I shall speak to amendments Nos. 105, 106 and 129. The point is the same: there should not be an unlimited period of emergency regulations. Amendment No. 105 would mean that, for one emergency, there would be a maximum of 90 days of emergency regulations. If the Government wanted to continue with the powers after that, they would have to introduce a Bill, but 90 days gives them adequate time to do that. It would be wrong, as the hon. Member for Sheffield, Hallam (Mr. Allan) has said, to allow Ministers to continue with emergency regulations over very extended periods of time.

Richard Allan: In support of the hon. Gentleman, it is worth noting that the 2001 Act, which is substantial and involves significant legal issues, was passed well within 90 days.

Oliver Heald: I entirely accept that. We all have some experience of emergencies, if not necessarily of that kind. When there is a need, Parliament can act relatively quickly and 90 days is more than adequate for that purpose. It is incumbent on the Minister to explain why he wants more time.
 Many concerns have been expressed about the Bill and the wide-ranging nature of the powers that the Government are taking. We are not used to emergency powers. We do not have bush fires lasting for 100 days or repeat earthquakes, and our floods do not last for hundreds of days. The Minister needs to come up with something major to justify more.

Douglas Alexander: What challenging words to rise to, Mr. Benton.
 The hon. Member for Sheffield, Hallam challenged me to join him in pastures new by accepting his amendment, but I fear that I may disappoint him. 
 [Interruption.] I welcome the opportunity to discuss the period of duty—I may be a sinner repenting, but not in these clauses. 
 Although I welcome the opportunity to discuss the time for which emergency regulations will be in force, the Government cannot support the amendments. When emergency regulations are made, an assessment will be carried out as to how long it is likely to be necessary to keep them in force. If it seems at the outset that it would be necessary and proportionate to maintain the regulations in force for a matter of days or weeks only, the regulations will provide for that. In subsection (1)(b), the Bill expressly recognises that regulations may themselves specify a date on which they cease to have effect. In other cases, however, the regulations will lapse automatically 30 days after the day on which they are made. 
 The Government will not be idle in the period between making the regulations and their automatic lapse. We will keep the situation under review. If it becomes apparent that there is no need to maintain the regulations in force and that it would be reasonable to revoke them, the Government will do so. It is therefore unnecessary to provide for that in the Bill. The Government will review the continued operation of emergency powers as a matter of course and they will be accountable to Parliament for so doing. It is unnecessary expressly to provide that the regulations may be revoked, given that section 14 of the Interpretation Act 1978 provides that where an Act confers a power to make regulation, it implies a power to revoke them. 
 If, at the end of the period of 30 days it is clear that provisions are still needed, the Government will have a number of options. If it is apparent that an emergency will continue for a substantial length of time, the Government could bring forward appropriate primary legislation to replace the emergency regulations whenever possible. However, that may not always be the best approach. The nature of an emergency can change over time, and its effects and implications are clearly unpredictable. It may not always be desirable to attempt to construct appropriate primary legislation, as it may risk being overtaken by events. In such circumstances, a further set of emergency regulations could be made. 
 Concern has been expressed about whether a subsequent set of emergency regulations would be subject to parliamentary approval. Under the 1920 Act, emergency regulations could be maintained in place by way of a monthly royal proclamation and without further parliamentary approval, but the Government agree that that is not the right approach in the modern day. Any new set of emergency regulations should be subject to further parliamentary debate. The Bill provides for that. 
 Subsection (1) provides that emergency regulations will lapse 30 days after they have been made. Subsection (2) makes it clear that a new set of regulations may be made thereafter; but any such regulations would be subject to the provisions for parliamentary scrutiny laid down in clause 26. Clause 
 26 applies when emergency regulations are made; there is nothing that limits its application to the first set of emergency regulations. The Bill is therefore clear on that point. There is no need to provide expressly that a second set of regulations should be subject to parliamentary scrutiny; nor does subsection (2) cast any doubt on that point. 
 The hon. Member for Sheffield, Hallam raised the understandable concern of how many times emergency regulations may be remade. The Government considered whether a limit should be included in the Bill. However, we rejected that approach on the ground that it would be arbitrary and inflexible. What would the limit be? For example, the amendment offered by the hon. Member for North-East Hertfordshire suggests three times, but some emergencies may last a little longer, perhaps by only a couple of days or weeks. It would not be sensible to remove emergency regulations that had been approved by Parliament and put in their place primary legislation that might be needed only for a short time—perhaps only a few days. 
 It has been suggested that anti-terrorism legislation was a useful precedent, but considering the length of time it took to pass that legislation, it is questionable whether in those circumstances, where the emergency situation might continue for a matter of days, it is better to start a process of securing primary legislation. In addition, there may be emergencies that initially appear short term, but turn out to be longer lasting. In such circumstances the Government might find themselves with insufficient time to bring forward primary legislation to deal with the situation, but forced to allow emergency regulations to lapse. 
 The Government consider that there are adequate safeguards in the Bill to ensure that emergency powers are not maintained for a longer period than is necessary. Each set of regulations will have to meet the triple lock, which has clearly been debated on a number of occasions in this Committee. In particular, it must still be necessary to make provision to deal with the emergency. The emergency regulations would be subject to parliamentary approval every 30 days.

Richard Allan: I am grateful to the Minister for not calling my amendment No. 121 otiose. I think that that was the substance of what he said in response. The Interpretation Act, which my hon. Friend the Member for Orkney and Shetland says is a wonderful thing, means that what a Minister giveth, a Minister also taketh away—the Minister can simply say that the emergency regulations are no longer necessary without this being specified in the Act. That is a helpful addition to my legal knowledge, although I still think it would be helpful to have it spelled out in this piece of primary legislation.
 On the other points that he made about the potential to repeat, we will be debating the introduction of those emergency regulations when we get to clause 26. The extent to which parliamentary scrutiny genuinely still takes place remains an issue of concern, certainly on this side. Going back to the point I made in moving the amendment, parliamentary scrutiny is limited by the fact that Governments will have a majority and will be able to get repeat approval 
 for their regulations, so we prefer to see the scope of this procedure locked down even more. However, I will certainly consider the points that the Minister made in what was a helpful response to this group of amendments and I would not seek to press the amendment.

Oliver Heald: We are not satisfied that the Minister so readily rejected amendment No. 105. This Bill gives very wide-ranging powers, the sort of powers that are strictly unusual in our country, a free country. The sort of powers we are talking about could include taking people's property away without compensation; destroying property, animal life or plant life without compensation; or prohibiting or enabling the prohibition of, people's movements. This is about soldiers at the end of the street.
 Is the Minister seriously saying that he, as the Minister, is entitled to say to us, ''We are going to take these wide-ranging powers and, because it might be slightly inconvenient for the Government, we are not prepared to put any limit on the length of time that this can go on''? He starts off with 30 days, he may want another 30 days, and so on, but 90 days is a good long time for a country like ours to have these sorts of regulations in place. For the Minister to say that we may not be able to make a prediction and that when we reach 90 days we may not have time to pass primary legislation, is lazy complacency which will not do. [Interruption.] Well, it is a lazy complacency and it is the sort of thing that Governments want to get away with. With a massive majority like theirs, they think that they can swan along, not giving a concession on anything, and that our great, free country just has to put up with it. If there were a Labour majority of five, 10 or something of that sort, they would make concessions on these matters, because this is against liberty. It is against all the things for which this country stands. They should put a limit on it and it is time that they did. 
 I want to return to this and I am going to withdraw the amendment so that I can.

Douglas Alexander: I am saddened and disheartened that the civility that has characterised our discussions seems to be departing in the death throes of the Committee stage.
 The point that has been made is important and it merits a serious response. What unites the Liberal Democrats and the Conservatives is not a recognition of contempt for Parliament on my side of the Room but a contempt for democracy on their side. The fundamental grievance that unites the hon. Members for Sheffield, Hallam and for North-East Hertfordshire is that the British people deliberated and decided to give the House of Commons a Labour majority. They have inner rage and frustration about that. The only point of common acceptance between them is their indignation and anger that any Government can have a majority as large as that of this Labour Administration. 
 It was entirely disingenuous of the hon. Member for North-East Hertfordshire to suggest that there are not the appropriate democratic safeguards on a 
 Government seeking to implement emergency regulations. I would have thought that in his calmer moments he would have recognised that the 30-day limit, with its obligation then to come back to Parliament, gives the safeguard for democracy and liberty that he spoke about in such overblown terms at the end of his contribution. I cannot accept his fundamental premise that somehow the workings of democracy stop when there is not a Conservative majority in the House of Commons. On that basis, he is fundamentally wrong.

Oliver Heald: Does the Minister really want to live in a country where we can carry on with emergency regulations of this sort for years with no end date in sight? That is not good enough. Ninety days is good enough. If he then wants to introduce a Bill, that is fine.

Douglas Alexander: I assure the hon. Gentleman that I am confident that the triple lock, which remains in place, and the fact that we will come back to Parliament every 30 days on the basis of the regulations, give the safeguards that the British people reasonably expect. It ill behoves him to suggest that there are motives on this side of the Room that are not apparent. We have said that there will be a triple lock, which is a stronger set of guarantees than ever existed under previous Conservative Administrations—or, indeed, previous Labour Administrations.

Oliver Heald: Will the Minister give way?

Douglas Alexander: I will not give way at this stage, as I want to develop my argument.
 We are keen to ensure that the appropriate safeguards are embedded in this legislation. That is why we introduced the triple lock. I have no favour with an argument that suggests that, given the particular composition of the House of Commons at any particular time, the appropriate democratic safeguards—that these regulations come back to the House of Commons after 30 days—are somehow invalidated.

Oliver Heald: I feel that I have to protect the Minister. In the future, things may not be as they have been during his time. At present, there is a massive Labour majority, but a time may come when a different party is in power.

Alistair Carmichael: The Liberal Democrats.

Oliver Heald: I do not think that it will be the Liberal Democrats.
 We must pass good laws with proper protections. I am not satisfied that that is the case, so I will press for a separate Division on amendment No. 105.

Richard Allan: To close the discussion on amendment No. 121, the Minister's contribution deserves a brief response because he threw accusations of contempt of Parliament at opposition parties. It is worth returning to some of the contexts of the Bill that we set out on Second Reading, because they are particularly relevant.
 Parliament might not always be in the hands of democratic, rational parties. We would not have 
 particular concerns about any of the parties that are currently represented in this Committee. However, in some of our closest neighbouring European states, parties that are on the verge of being dangerous, undemocratic forces have achieved power and authority, and we need to protect against them.

Douglas Alexander: An illogicality has crept into the hon. Gentleman's contribution. What statutory safeguards is he seeking in this legislation to ensure against the democratic wishes of the British people as expressed in a future general election? What safeguard could we possibly have against the choice that the British people might make at any point in the future as to who they choose to elect to the House of Commons?

Richard Allan: The Minister should read his history books or look at some of the political circumstances that prevail today. Parties gain significant power, seek to use any statutory ability that they have to create states of emergency and then use that to take yet more power unto themselves. We have concerns about the legislation that we are currently debating not because we think that it would be used by the kinds of parties that are represented in this Committee, but because there is the potential for it to be abused at some future date if a party with less well-intentioned motives gains a position of power and authority. We were reminded on Second Reading that the Nazi party in Germany gained power through democratic means. It gained power through the ballot box to a certain degree and then used statutory powers to extend its ability to get into the organs of the German state. We are talking about powers and legislation that might last 50, 60, or 70 years. I cannot predict that at no future point will a party under our current electoral system be able to gain sufficient power and authority to seek to use emergency powers in an abusive fashion. I remain concerned about that and we are trying to limit emergency powers by limiting the scope for their potential abuse by anyone at a future date.

Oliver Heald: Does the hon. Gentleman agree that if we do not attempt to limit the powers to what is reasonable we might as well as give up? The whole point of this exercise is to try and pass reasonable laws that provide reasonable powers to what, I hope, is a reasonable Government.

Richard Allan: The hon. Gentleman is correct. The counter-argument is just to trust the Government, which will supposedly be okay as it will always be elected by a majority. It is perfectly reasonable that in our amendment we have sought to ensure that the Government do not have the ability to abuse emergency regulations. The hon. Gentleman's proposal of a 90-day measure is entirely sensible, and I will support his amendment if he moves it. I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn.

Richard Allan: I beg to move amendment No. 123, in
clause 25, page 17, line 14, leave out 'affect anything' and insert 'render unlawful'.

Joe Benton: With this it will be convenient to discuss the following amendments:
 No. 125, in 
clause 26, page 17, line 42, leave out 'affect anything' and insert 'render unlawful'.
 No. 130, in 
clause 26, page 17, line 42, leave out 'affect anything' and insert 'render unlawful'.

Richard Allan: The amendments concern a legal point. We think that there is a distinction to be drawn between the current wording, which says that anything that has happened under the regulations would not be affected at a later date, and wording that says that anything that happens in the parliamentary process does not render the regulations unlawful. It is important to make that distinction.
 We can foresee circumstances where regulations have been made, Parliament takes a different view when it meets after the seven-day interval, and a question mark is thrown over the regulations. The ''rendering unlawful'' formula is intended to ensure that servants of the Crown who are engaged in this—whether they are members of the armed forces or of the blue light services, such as doctors—have the protection that they need, as they are simply carrying out their duties quite properly under the regulation. We do not want their actions to be rendered unlawful. However, to say that any subsequent decision of Parliament shall not affect anything, as the original wording does, goes too far. 
 Earlier, in our animal health and foot and mouth examples, emergency regulations have ordered the destruction of animals, but Parliament has then taken a different view. It may be appropriate in those circumstances for compensation to be given that reflects the fact that regulations were struck down by Parliament. We would not want vets or anyone else involved to be declared to be acting unlawfully, but we do want things to be affected. The amendment is a genuine attempt to reflect the intention of the legislation, which is to ensure that we protect people who are carrying out the regulations, without going so far as to render everybody incapable of taking action, especially where action may be justified on the basis that Parliament took a different view about emergency regulations. The sovereign, sensible, rational Parliament, elected by the British people, might take a different view about the emergency regulations from the one that the Minister took when he drafted them.

Douglas Alexander: The Government entirely agree that lapse of the regulation should neither render as unlawful action that which has been properly taken in reliance on the regulation, nor adversely affect the rights of those who have been affected by such action. The amendments would not achieve that result however, and I cannot accept them for that reason.
 Concerns have been raised that the provision would somehow cast doubt on a claim for compensation in relation to action undertaken under the regulations. That is simply not the case. If a public authority exceeds its powers under the regulations, or if the regulations themselves are defective in some way—for example, they do not provide for compensation in circumstances where it is required under the Human Rights Act 1998—an individual who is adversely 
 affected can seek redress in the courts. Lapse of the regulations will not affect that, as the right to seek redress derives not from the regulations but from public law. However, it is appropriate to make express provision to ensure that things that are lawfully done under the regulations are not affected by lapses of the regulations. That is the purpose of clauses 25(2)(a) and 26(4)(b). 
 Those provisions will apply to action taken by public authorities under the regulations, but will also relate to things done by or in relation to other persons. Thus, if an individual has received compensation under the regulations or exercised a right of appeal conferred by the regulations, a lapse will not affect that payment or that appeal. If a person has been convicted of a criminal offence under the regulations, a lapse will not affect that conviction. 
 The wider wording used in the Bill—that a lapse of the regulations 
''shall not affect anything done by virtue of the regulations''—
 achieves that end, but it is not clear that the narrower wording suggested in the amendments that a lapse shall not ''render unlawful'' 
''anything done by virtue of the regulations''
 would serve, for example, to preserve any payment of compensation or appeal rights. There may be a common agreement as to the intention, but we cannot accept the amendment.

Oliver Heald: The Minister referred to the public law basis on which compensation was to be made. Will he explain what he meant by that?

Douglas Alexander: The right to seek redress is established in common law, rather than specifically on compensation. For example, the European convention on human rights allows for redress against public bodies. I think that that addresses the specific point raised by the hon. Gentleman.

Richard Allan: That was a helpful response and we will study the record. At this stage, it would not be helpful to press the amendment. I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Amendment proposed: No. 105, in 
clause 25, page 17, line 15, at end add— 
 '(3) Where emergency regulations are made and thereafter new regulations are made, the series of regulations shall lapse after 90 days and new regulations shall not be made thereafter under this Part in respect of the emergency.'.—[Mr. Heald.]
 Question put, That the amendment be made:—
The Committee divided: Ayes 7, Noes 9.

Question accordingly negatived. 
 Clause 25 ordered to stand part of the Bill.

Clause 26 - Parliamentary scrutiny

Patrick Mercer: I beg to move amendment No. 113, in
clause 26, page 17, line 18, leave out paragraph (a) and insert— 
 '(a) these regulations shall be put to a Joint Committee of both Houses of Parliament consisting of members of the Privy Council chosen to reflect the political balance of the House of Commons (to be known as the Emergency Powers Committee), before their acceptance, to provide an initial parliamentary check. 
 (aa) a senior Minister of the Crown shall then, as soon as is reasonably practicable, lay the regulations before Parliament, provided that he believes on reasonable grounds that he has used his best endeavours to consult the Emergency Powers Committee. 
 (ab) a senior Minister of the Crown may dispense with the requirements of paragraph (a) above if he thinks it is necessary to do so by reason of urgency.'
 The amendment would replace the phrase in subsection (1)(a) 
''a senior Minister . . . shall as soon as is reasonably practicable lay the regulations before Parliament''
 with the phrase 
''these regulations shall be put to a Joint Committee of both Houses''—
 hereinafter referred to as the emergency powers committee— 
''consisting of members of the Privy Council . . . to reflect''
 the membership of the House of Commons 
''before their acceptance, to provide an initial parliamentary check.''
 It is clear that if a traumatic disaster of the sort that we are trying to legislate for overcomes the country, speed will be extremely important. We understand from the Minister and from the way in which the regulations have been articulated that speed is crucial. 
 The purpose of trying to establish an emergency powers committee is that proposed ministerial regulations could be investigated quickly and, when necessary, the committee could act as a proxy for Parliament. That should provide a quick but effective check in the hands not of a senior Minister, but of a picked number of extremely experienced, thoughtful and practical people who, if the Government nominate them beforehand, train them and give them due warning, could act as a most useful democratic check in such circumstances. 
 It is particularly useful to see what happens in the United States, albeit that its constitution is completely different from ours. Had such a committee been available to Mr. Bush in the aftermath of the attacks on 11 September, he would have found its advice and the necessary checks and balances imposed by such a committee extremely useful. That is why we have come up with this concept— 
 Sitting suspended for a Division in the House. 
 On resuming—

Patrick Mercer: I shall start where I left off. The idea of the emergency powers committee is to act as a check and balance and to be a sounding board for the Government in times of great emergency. Above all else, it should assist the Government in a balanced way, but quickly.
 My experience of our discussions so far is that any idea that is intended to assist the Government with fresh thinking or any form of initiative, and which is practical rather than semantic, falls on deaf ears. I am sure that that will not be the case with this amendment as it is both practical and democratically important. I am extraordinarily optimistic that the Minister will acquiesce.

Richard Allan: There is a lot of merit in the ideas put forward by the hon. Member for Newark, particularly in relation to the kind of dire emergencies that have been described. Every effort should be made to seek cross-party agreement on any regulations laid under the Bill. The specific and privileged role of Privy Councillors is important. Having already discussed Orders in Council, we are again grappling with arcane parts of the British constitution. Privy Councillors could have a significant role, and perhaps, more so when events are developing in a dangerous fashion. It is entirely appropriate to consider whether the Government can assure us that they would, at least, seek to involve a wider range of people than themselves, and to take alternative counsel.
 Following a slightly heated exchange earlier, we recognise that the authority to take action in such situations duly rests with the elected Government but it would be in their interests to involve others, particularly Privy Councillors, and that would give emergency regulations additional force.

Douglas Alexander: In response to the hon. Member for Newark, I respectfully suggest that it is not the origin of the amendment that matters, but its merit. In that regard, I the Government may hope that the Committee will support later amendments—in a matter of minutes, in fact. Unfortunately, this amendment does not fall into that category, and the Government cannot support it. We resist its inclusion for several reasons.
 The Government are sympathetic to the principle of wider consultation with representatives of key parties when emergency powers are to be used, but they do not believe that the amendment sets out the best way to go about that. The Committee will be aware of the long-standing convention that the Government should seek in times of serious emergency to build consensus across the political spectrum. The Prime Minister regularly briefs senior figures from all the major political parties on a Privy Council basis—most recently for the Iraq conflict. Those tried and tested procedures allow the Government to obtain the views of senior parliamentary figures in a flexible and efficient way, and that means can be tailored to the needs of the situation at hand. The amendment would not guarantee parliamentary oversight. Any Government seeking to use emergency powers for 
 anti-democratic reasons could simply cite the urgency caveat and dispense with the requirement in the amendment. The urgency caveat could be removed, but that would make the process inflexible, particularly for situations in which action is urgently needed, or in which it is impossible to consult the relevant Privy Councillors. 
 Ultimately, it seems most appropriate to rely on the clear requirements for parliamentary scrutiny in clauses 26 and 27, which provide for sensible, timely and well tested scrutiny. I urge the hon. Gentleman to withdraw the amendment.

Patrick Mercer: I suppose that optimism must always be tinged with the well-tried phrase, ''This it is an amendment that the Government cannot support''. I have no doubt that the Minister is right and that amendments stand or fall on their merits. I am not referring only to this amendment, but to the fact that he knows my strong feelings and those of the hon. Member for Sheffield, Hallam.
 The Minister should be aware that my hon. Friend the Member for North-East Hertfordshire and I made it quite clear on Second Reading, that we wished to support the Government—help, aid and abet them—on the broad thrust of the Bill. We are acting in their support. The way in which the Minister and his colleagues have conducted themselves, especially on such an eminently sensible and practical amendment, leaves me a little nonplussed about the support that the Government can hope to receive in future. If they continue to prove themselves completely closed to reason, which is extraordinary frustrating to Opposition Members, they give no hope that if an emergency overcomes this country in the style that we have been discussing, the Government will hope to form the quick, effective consensus that the Minister described. 
 Despite those words, I recognise the complete futility of trying to beat my head against the Government's intransigence, so I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn.

Oliver Heald: I beg to move amendment No. 33, in
clause 26, page 17, line 39, at end insert— 
 '(3A) Paragraph (1) of House of Commons Standing Order No. 16 (Proceedings under an Act or on European Union Documents) shall not apply to proceedings in the House of Commons under this section.'.
 The amendment was tabled by my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd) and arises out of his observations on Second Reading. He pointed out that measures of the type we are discussing should not be dealt with in the 90 minutes of debate that are traditionally allowed. He said: 
''we have good reason to remember just what the affirmative resolution procedure entitles us to—90 minutes of debate on what is listed''.
 He went on to make a moving speech in which he said that he felt that liberty was worth more than that, and that it was necessary to have more 90 minutes for such a debate. He referred to some remarks of my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) and said: 
''If I were a pretty nifty Government, I would get my amendment in first and Mr. Speaker would select it. In any event, how can amended regulations be subject to proper debate on the nature of the amendments if we have only 90 minutes?—[Official Report, 19 January 2004; Vol. 416, c. 1147.]
 My hon. Friend then made some comments, which were generally thought quite amusing, about Whips presenting the regulations. He said that it beggars belief that they can introduce emergency regulations, but that we have only 90 minutes in which to discuss them. Amendment No. 33 is all about not applying Standing Order 16 to such proceedings.

Richard Allan: I agree with the hon. Member for North-East Hertfordshire (Mr. Heald) that it is important for us to consider this matter, which was sensibly and correctly raised by the hon. Member for Aldridge-Brownhills. We could be dealing with legislation as significant as such pieces of primary legislation as the Anti-terrorism, Crime and Security Act 2001, which had to be put in place on an emergency basis.
 To be fair, the Government have conceded the point about amendment of the regulations, which I understand was included in the 1920 Act. They have carried forward to this Bill the principle of amendment of regulations, although it is not normal in other legislation, which does not permit amendment of secondary legislation. That raises the issue of the procedures under which such amendments will be debated. I suspect that the answer is that the will of Parliament will prevail. If Parliament wishes to debate the regulations at greater length or to set different procedures for selecting amendments, it has the power to do so. However, the reality is that unless we give a more explicit steer about our expectations at this stage, we will effectively be presented with the normal procedure of an hour and a half and an opaque system for selection of amendments; it is certainly opaque from the point of view of people who try to steer the process and want certain issues debated rather than others. 
 Let us consider our ability to debate primary legislation and the way in which we can freely table amendments and have them selected. Let us debate such issues, and consider what might be a restricted debate on a subject of, dare I say it, great significance to the ordinary person because of the kinds of powers that will be taken. The Minister has a responsibility to explain the Government's expectation of how we will deal with the regulations once they come to Parliament.

Douglas Alexander: The Government accept that 90 minutes is unlikely to be sufficient to debate regulations as important as these will be. It is likely that there would be a call for a major debate on the crisis in a time of emergency, and the Government would respond by providing appropriate time. That said, the Government do not support and will resist the amendment. We are not convinced that it is appropriate to amend Standing Orders. We would have to be sure that it was necessary and appropriate to complicate them with varying procedures for different kinds of regulations.
 The Government frequently table Business of the House motions to provide more time than the 
 Standing Orders stipulate. I assure the Committee that the Government will be ready to discuss the appropriate length of debate through the usual channels when and if needs arise. The key point is that Standing Orders are ultimately a matter for the House authorities, and they can be duly amended if the Government feel it necessary.

Oliver Heald: The Minister does not give much away, does he? My hon. Friend the Member for Aldridge-Brownhills feels particularly strongly about the amendment, and we will want to return to the matter on Report. To echo the comments of my hon. Friend the Member for Newark, it is disappointing that we have not had a sausage from the Minister, despite the Opposition's consensual approach. I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Clause 26 ordered to stand part of the Bill.

Clause 27 - Parliamentary scrutiny: prorogation and adjournment

Question proposed, That the clause stand part of the Bill.

Richard Allan: I am curious whether clause 27 will not be out of date before it comes into force. When I looked at the red Annunciator screen earlier, it told me that the Lords Chairman was on the Woolsack, yet subsection (4) refers to the Lord Chancellor. I assume that that refers to the person who is the Speaker of the House of Lords. Can clause 27 stand?

Patrick Mercer: I have a brief question. Clause 27(2) states:
''If when emergency regulations are made under section 19 the House of Commons stands adjourned to a day after the end of the period of five days''.
 If there is an emergency, would not it be wiser to have a period of less than five days, as we will need to move extraordinarily quickly? Might not 48 hours be more suitable?

Alistair Carmichael: Further to the point made by the hon. Member for Newark, it strikes me that a substantial part of what will be section 27 should also be incorporated in the Standing Orders of the House in the interests of completeness and clarity. That is where the proposal properly belongs; however, it should at least be cross-referenced.

Douglas Alexander: I feel drawn to try to answer the charge laid at my door by the hon. Members for Newark and for Orkney and Shetland before I respond to the point made by the hon. Member for Sheffield, Hallam. Hon. Members could raise many concerns, but it is not reasonable to say that we failed to consult on this measure. We published a draft Bill in July; there was then a period of public consultation that lasted 10 weeks, until 11 September. After that, we moved on to pre-legislative scrutiny by the Joint Committee. With colleagues from Scotland, we are well versed in pre-legislative scrutiny, but it is not a process that has a long track record at Westminster. Those of us who were involved in it are, however, minded to view it as an exemplar of how effective it
 can be. If it leaves the Minister with fewer sausages for the Committee stage, given the degree to which one has been able to anticipate its appetite, so be it.
 The idea that there was once merit in introducing vast numbers of amendments in Committee or in the other place, as distinct from getting the Bill right in the first place as a result of effective pre-legislative scrutiny or drafting, may simply reflect the need for us all to update our thinking on when is the appropriate stage for amendments, concessions or points of clarity. 
 Notwithstanding all that, we continue to be open to points made in Committee. As evidence of that, I will respond to the hon. Member for Sheffield, Hallam, who raised a reasonable point, not least given the appearance of one of my distinguished ministerial colleagues on ''Newsnight'' last night to discuss the role of the supreme court and the Lord Chancellor. If those reforms find full expression, it will be necessary for us to revisit the position in respect of the Lord Chancellor. The reference to the Lord Chancellor as Speaker of the House of Lords may need to be changed following future constitutional developments. The hon. Gentleman makes a fair point, which I accept. 
 The hon. Member for Newark mentioned the time scale. Five days reflects the time scale set in the 1920 Act, which was the precedent for the Government's proposal. In the spirit of open discussion and candour that we have established, at least on this clause, I will be happy to consider the hon. Gentleman's point. 
 Question put and agreed to. 
 Clause 27 ordered to stand part of the Bill.

Clause 28 - Consultation with devolved administrations

Question proposed, That the clause stand part of the Bill.

Elfyn Llwyd: I am not searching for sausages; frankly they are as difficult to find here as weapons of mass destruction.
 The Minister said that he would write to me on the specific matter of urgency vis-à-vis consultation with the National Assembly for Wales. It is an important subject for the Assembly and I should be obliged to receive a response in due course.

Douglas Alexander: I am happy to repeat my undertaking. I shall endeavour to ensure that the letter is sent quickly.
 Question put and agreed to. 
 Clause 28 ordered to stand part of the Bill.

Clause 29 - Procedure

Douglas Alexander: I beg to move amendment No. 114, in
clause 29, page 18, line 36, at end insert— 
 '(2) Emergency regulations shall be treated for the purposes of the Human Rights Act 1998 (c.42) as subordinate legislation and not primary legislation (whether or not they amend primary legislation).'.
 The Government considered whether emergency regulations required procedural protection from challenges on human rights grounds. To prompt discussion on the matter, the draft Bill published in June included a clause that provided that emergency regulations were to be treated as primary legislation for the purposes of the Human Rights Act. The effect would have been to limit the remedies that a court could award on a successful challenge to emergency regulations on human rights grounds, informed by the consultation process that I described at length. On the report of the Joint Committee and its further analysis, the Government decided that that was not necessary, and the relevant clause was not included in the Bill when it was published. However, it has become apparent that the Human Rights Act 1998 will treat regulations as primary legislation in certain circumstances, particularly if the regulations amend primary legislation. That does not reflect the Government's intention. The amendment will ensure that emergency regulations are treated as subordinate legislation for the purposes of the Human Rights Act, even if they amend primary legislation. Therefore, the emergency regulations can be struck down by the courts on human rights grounds when appropriate.

Richard Allan: The Government deserve to be congratulated on this point, which was raised effectively by Liberty and Justice during consultation before the Joint Committee. The Government conceded that they wished to make changes, and they have done so in two steps. The first was to remove the provision that referred to treating the regulations as primary legislation, and the second was the explicit reference—clearly and neatly worded—to the fact that the regulations are not to be treated as primary legislation.
 I am fascinated by the fact that the Minister said that the Government's rationale for including the provision that the regulations be treated as primary legislation in the draft Bill was ''to prompt discussion''. That is a delicate and nicely phrased way of putting it. It prompted not only discussion, but horrified responses. If that was the aim, the Minister succeeded. He delicately phrased the inclusion of a provision that rightly concerned many people. I congratulate the Government on responding positively to that concern and making this explicit revision to the Bill.

Oliver Heald: Concerns were raised by a variety of bodies, such as those involved with the fire services, about the Government's approach. If an injunction is sought from the courts, will those seeking the injunction have to give an undertaking in damages?

Douglas Alexander: Let me first deal with the point made by the hon. Member for Sheffield, Hallam. I assure the House that we are not seeking to appear wise after the event about the inclusion of the provision in the draft Bill. It might be helpful if I share the specific point that we raised in the
 Government response to the Joint Committee. We stated:
''The consultation paper outlined the Government's reasons for including this provision in the draft Bill. The Government considers that in an emergency, it is necessary to balance individual rights against the need to respond to an emergency. The Government was keen to hear what the Committee and consultees had to say on how best to strike this balance. The provision included in the draft Bill providing for emergency regulations to be treated as primary legislation for the purposes of the Human Rights Act was one way to strike the balance. However, the Government made clear in its consultation paper that the case for its inclusion in the final bill was by no means certain.''
 We anticipated that the issue would stimulate public debate, and we were keen to ensure that we considered the widest range of views when deciding whether the draft clause struck the right balance. That is a further example of the Government being willing to listen to reasoned argument if we find that it supports our substantive policy goals. I am aware that human rights groups such as Liberty and Justice have continued to raise concerns. Through what the hon. Member for Sheffield, Hallam described as the two-step process, we have been able to use the back door on the concerns raised. 
 The further point raised by the hon. Member for North-East Hertfordshire was about remedies. It is important to clarify the balance that the Government intend to strike. It became apparent that we had to ensure that appropriate safeguards were in place. The treatment of emergency regulations as subordinate legislation for the purposes of the Human Rights Act, even if they amend primary legislation, is important and is reflected in the amendment. The amendment will ensure that emergency regulations can be struck down by the courts in certain circumstances. The remedies that are then available to courts are a matter for the courts themselves. The hon. Gentleman's point addressed the remedies rather than the legitimacy of the action. 
 Amendment agreed to. 
 Clause 29, as amended, ordered to stand part of the Bill. 
 Clause 30 ordered to stand part of the Bill.

Clause 31 - Minor and consequential amendments and repeals

Question Proposed, That the clause stand part of the Bill.

Patrick Mercer: This is only a small query. It strikes me that one or two of these minor and consequential amendments and repeals would sit more easily if the Government could clarify the exact nature of the amendment or repeal, most notably in relation to the Race Relations Act 1976. I fail at first glance to understand where the 1976 Act sits in relation to the Bill. I would be grateful for any clarification.

Douglas Alexander: On the basis of the shuffling of paper that I hear over my left shoulder, I undertake to write to the hon. Gentleman on that point.

Patrick Mercer: I am grateful.
 Clause 31 ordered to stand part of the Bill. 
 Schedule 2 agreed to.

Schedule 3 - Repeals and Revocations

Douglas Alexander: I beg to move amendment No. 65, in
schedule 3, page 27, second column, leave out lines 34 to 37 and insert— 
 'The whole Act.'.
 This is a technical amendment relating to the repeal of the legislation on civil defence—the Civil Defence (Armed Forces) Act 1954—that makes provision for the training in civil defence of members of the armed forces. In the light of the repeal of the Civil Defence Act 1948, the 1954 Act is unnecessary. Initially the Government decided to preserve section 2 of the 1954 Act, which declares, for avoidance of doubt, that the duties that the armed forces may be called on to undertake include civil defence and civil defence training. However, after further discussion with our colleagues in the Ministry of Defence, it is clear that existing terms of service leave no doubt about whether members of the armed forces can be called on for those purposes. It is therefore not necessary to preserve that provision, and the Act can be repealed in its entirety. 
 Amendment agreed to. 
 Schedule 3, as amended, agreed to. 
 Clauses 32 and 33 ordered to stand part of the Bill.

Clause 34 - Extent

Question proposed, That the clause stand part of the Bill.

Alistair Carmichael: What is the situation with regard to a Sewel motion in the Scottish Parliament, in as much as the Bill relates to Scotland?

Douglas Alexander: Rather unhappily, my initial briefing says that the Bill extends to the entirety of the UK. However, I believe that the Sewel motion is still pending, so there has been no further progress since the last time we discussed the point.
 Question put and agreed to. 
 Clause 34 ordered to stand part of the Bill. 
 Clause 35 ordered to stand part of the Bill.

New clause 1 - Performance of functions and jurisdiction of the courts

'Where Her Majesty, a Minister of the Crown or other person or any of them performs functions under Part 2 of this Act they shall carry out those functions only in circumstances in which they have reasonable cause to believe that the exercise of those functions are essential in the national interest and nothing in this Act shall be construed as ousting the jurisdiction of any court in determining that or any other matter arising under this Act.'.—[Mr. Heald.]
 Brought up, and read the First time.

Oliver Heald: I beg to move, That the clause be read a Second time.
 The new clause was tabled by my hon. Friend the Member for Stone and was designed as a check on the 
 Executive. I should be interested to hear the Minister's response to the new clause, after which I will see if I have any further questions.

Douglas Alexander: That prompts the question of what is the point of MPs standing in elections when they can act like the Government anyway? I shall endeavour to answer the hon. Gentleman's rather elliptical introduction to the new clause.
 The Government agree with the sentiments underlying the amendment, but perhaps unsurprisingly in the context of our discussions this afternoon, we are unable to accept it. We have discussed at length the checks and balances that limit the exercise of powers conferred by part 2, and particularly how the triple lock and the Human Rights Act 1998 will operate to restrict the exercise of emergency powers. It is not clear what the additional restrictions suggested by the new clause, which says that the powers must be exercised only when that is 
''essential in the national interest''
 would add to the safeguards. I will be intrigued to hear the hon. Gentleman's contribution. 
 Concerns have been raised about the ability of the courts to review the exercise of emergency powers. Access to the courts is a fundamental principle of the United Kingdom's constitution. Even in an emergency, a person should be able to challenge the legality of an action that adversely affects them. However, there is nothing in the Bill to limit that. The fact that the Bill does not expressly require the powers conferred by the Bill to be exercised reasonably, as I sought to describe earlier, is not an attempt to oust the courts' jurisdictions. Modern case law makes it categorically clear that the courts will require any power of that nature to be exercised reasonably, regardless of the terms on which the power is conferred. 
 If the Government thought that there could be any doubt about the ability of the courts to review any unreasonable action undertaken under the Bill, they would expressly require the powers to be used in a reasonable fashion, but there is no doubt on that point.

Oliver Heald: I am grateful for that. This is the point that my hon. Friend the Member for Stone was particularly keen to get at; what does the Minister's state of mind have to be to trigger the performance of the functions referred to? The point that my hon. Friend was making about Liversidge v. Anderson was that, even in Lord Atkin's judgment—the Minister accepts that that is the correct way of looking at the matter—the Minister has to have reasonable cause for his thinking; he does not have to genuinely believe on reasonable grounds. That is the essence of my hon. Friend's point. I would be grateful for a bit more detail on what, in the Minister's view, is the reasonable state of belief required from a Minister in carrying out the functions. He has talked about the concept of reasonableness, but we should tie that down in a bit
 more detail. I ask the Minister to say a bit more about whether the belief has to be a genuine belief on reasonable grounds in order to enable the Minister, or Her Majesty, to carry out the functions referred to in line 3.
 As regards the national interest, the Minister and his colleague will know that I have been teasing out the following point in recent discussions: under the 1920 Act, there was the idea of the essentials of life; the Act was about providing to the community the essentials of life in circumstances in which they had been deprived of them. In the Bill, the definitions are much broader and the powers much wider. We are told about the trigger mechanisms and the ways in which the Bill provides protection but, overall, is the purpose of the Bill still the same as that of the 1920 Act—that is, to ensure that an emergency can be dealt with by ensuring that the essentials of life are made available to those deprived of them? If not, and the purpose is now wider, will the Minister explain why? I am sure that that was what my hon. Friend was getting at in using the expression 
''that the exercise of those functions are essential in the national interest''
 in his new clause. 
 We want the Bill to be used only in circumstances that are grave and affect the national interest, and in which the community has been deprived of the essentials of life. In other words, we want to know whether the essential aims of the Bill are no different from those of the 1920 Act, and whether the Bill is a modernisation, or an updating; we want to know whether it is looking at the same issues, but in a modern context.

Douglas Alexander: Let me endeavour to answer both those points. Last night, while checking that the reply to a query put to me by the shadow Attorney-General was accurate, I found myself a reading public law case book. One of that book's comments was that we should no longer be haunted by the decision made in Liversidge v. Anderson, although I fear that it continues to haunt some of our deliberations and discussions. On the point about reasonableness, I repeat what I said earlier: we have considered the implications of Liversidge v. Anderson and of subsequent case law. We are satisfied that it is now accepted that the dissenting judgment of Lord Atkin is good law, and that the courts will inquire about the reasonableness of the Minister's belief.
 In relation to the specifics of this Bill, there was a question about what reasonableness of belief would mean in the context of particular ministerial deliberations. Clearly, there would be a genuine, objectively reasonable belief; that would be a matter for the deliberation of the courts in circumstances following the judgment exercised by the Minister. 
 I am not convinced that the hon. Gentleman's case for the need for an element of national interest adds much to the definition of emergency that we have set out, which clearly modernises the essentials of life and the terms on which the whole Bill is founded. The commodities of life were described in the 1920 Act in terms of issues such as locomotion. It is appropriate to 
 modernise the framework of civil protection, but also to ensure that there is a rigorous and clear definition of emergency. Much of the Committee's recent discussions has covered exactly that point.

Oliver Heald: I have no doubt that we will wish to return to this subject on Report. I beg to ask leave to withdraw the motion.
 Motion and clause, by leave, withdrawn.

New clause 2 - Confidentiality

'Regulations under section 2(5)(iii), section 4(4)(b) (to the extent that they make provisions of a kind permitted under section 2(5)(i)) and section 6(1) or (2) shall make suitable provision to protect the confidentiality of information provided or disclosed under those regulations, including an appropriate enforcement mechanism.'.—[Patrick Mercer.]
 Brought up, and read the First time.

Patrick Mercer: I beg to move, That the clause be read a Second time.
 New clause 2 is essentially a confidentiality clause. It is based not on the idea of a reasonable and rational Government enforcing such powers, but a Government who are malevolent, misguided, or, more predictably, thoroughly shocked by the events that surround them, in a way comparable to the effects of the strictures and difficulties under which Mr. Bush's Government operated after 11 September. In those circumstances, I think that that Government reacted extremely rationally, but it is possible that a Government might not react so rationally. 
 The new clause is designed to act as a whistleblower's comfort blanket. As things stand, the Government will be able, on Royal Assent, to demand information for any purpose they desire and pass it on or force it to be passed on to whatever level of responder they desire. That information could be dangerous; it might lead to conflicts of interest and to difficult circumstances where the passage of intelligence is concerned. It is important that the new clause should be viewed as intending to alter the behaviour of a malevolent Government, or a Government in deep shock. Although the new clause does not guarantee personal anonymity for the source of the information, at least the information will have to be kept secret. That might allow whistleblowers, for want of a better phrase—those who have difficulties with the way the Government are conducting themselves in these circumstances—physically to come forward with that information. I would be grateful if the Minister would illuminate me on that point.

Richard Allan: The new clause picks up on some issues that we raised at the start of this Committee—it feels like many weeks ago, but it was not that long—concerning part 1 powers. The hon. Member for Newark is right about the ability for responders to demand information from people and then pass it around between themselves. What might happen with that data remains a matter of concern. We are probably primarily concerned with problems arising with commercially sensitive data, rather than intelligence-sensitive data. The point where there is
 greatest danger of leakage, and of upset on the part of a company because its commercial information is in the public domain, is probably when the information about the telephone networks and other utility networks has been demanded and is in circulation. However, personal data about individuals could also be included. If we think about the public health issues that might arise here, such as those raised by communicable diseases, we could be dealing with personal data, and a category 1 responder requesting personal data from another category 1 responder. If they are both health bodies, that data will be incredibly sensitive.
 My guess is that the ministerial response will say that this is covered by the Data Protection Act 1998—that tends to be the response to any question concerning the leakage of data—but that is large and all-encompassing and is rarely used. The notion of there being straightforward legal redress—the penalties imposed for the leaking of certain kinds of information—is perhaps not as current as it should be, or as Parliament intended. It remains quite a weak instrument, and the idea that there should be specific reference to sanctions, as proposed in the new clause, in the context of a Bill that gives category 1 responders a power to demand this kind of information is quite healthy. Where, for the public good we are stating that data must be handed over, it is appropriate to say that those people who demand the data have, in Government jargon, responsibilities as well as rights, and their responsibility is a responsibility of confidentiality, backed by sanctions if they step from the path set out for them.

Patrick Mercer: The path of righteousness.

Richard Allan: Indeed. It is entirely appropriate that if we have the ability to demand information, there should be an explicit corresponding responsibility to protect it. I did not feel that that was explicit enough when we discussed the matter in part 1. The Data Protection Act powers are there—speaking of long Committees, the Committee on that Bill was 10 times as long as this one, mentally, if not in actual time taken—but they are not in the common usage required for there to be immediate recourse for people if their data have been leaked.

Douglas Alexander: I feel that I will disappoint the hon. Member for Newark once again by resisting the new clause. Throughout the Committee stage he has consistently implored us to take a practical approach. Indeed, it may be a matter of some quiet pride to him that one morning I was doing something as innocuous as shaving when he appeared on the ''Today'' programme making exactly these points and causing the Minister to have a rather more troubled breakfast than he had anticipated.
 I will try to answer specific points about information sharing, which is important with regard to the Bill's intentions and the safeguards that form the substance of what the hon. Member for Sheffield, Hallam said. Information sharing is fundamental to the development of sound risk assessments and well founded planning and response arrangements. How could a fire authority assess risk and make response plans without a thorough knowledge of how a local 
 electricity generator works? That is a very straightforward example. We recognise, however, that while information sharing is vital, it is highly sensitive. The hon. Gentleman was right, therefore, to emphasise that the confidentiality of information disclosed as part of the civil protection arrangements should be protected. He is also right to seek assurances that where confidentiality is breached, enforcement action will be available. 
 While I am unable to accept the amendment, I hope that my explanation will at least throw light on the points he has raised. Information sharing, whether under clause 2(5) or clause (6), will not materially affect the law of confidence. If one responder passes confidential material to another, pursuant to the regulations, he will be able to rely on common law remedies to enforce that confidentiality. In addition, the draft regulations contain provisions that preserve the confidentiality of sensitive information shared between responders. Furthermore, a responder—or a Minister of the Crown—may bring action in the High Court in respect of a failure by a responder to comply with the regulations. As draft regulation 29 makes clear, provisions concerning the protection of sensitive information not only cover commercially sensitive information but information the disclosure of which would be contrary to the interests of national security or would endanger public safety, and personal data the disclosure of which would breach the Data Protection Act 1998. That was raised by the hon. Member for Sheffield, Hallam. 
 In addition to the remedies offered by the Data Protection Act, the enforcement mechanism under clauses 10 and 11 would also apply. On that basis, I hope that I have offered the assurance that the hon. Gentleman seeks and I urge him to withdraw the amendment.

Patrick Mercer: I am sorry if I spoiled the hon. Gentleman's breakfast; I have no doubt that he consumed all the sausages that he might otherwise have thrown to us. The analogy cannot go on; I have obviously had my chips. The Minister has made it clear that he is not going to give any ground, despite the eloquent intervention of the hon. Member for Sheffield, Hallam.
 I have no doubt that we shall wish to return to this subject on Report, but in light of what the Minister said, I beg to ask leave to withdraw the motion. 
 Motion and clause, by leave, withdrawn.

New clause 3 - Compensation

'(1) Nothing in this Part shall affect existing rights under common law or under enactment to claim compensation. 
 (2) (a) Compensation shall be given for any loss or damage incurred as a consequence of any regulation passed under this Part if the regulations— 
 (i) cease to have effect under section 26, and 
 (ii) the loss or damage would not have occurred had the resolution not been passed or approved or had 
originally been passed subject to any amendment passed in section 26(3), 
 (b) sub-clause (a) shall not apply if the Secretary of State determines that there is compelling reasons why compensation should not be awarded, 
 (c) if sub-clause (b) applies the Secretary of State shall give his reasons as to what the reason is. 
 (3) Compensation may be given for any loss or damage incurred as a consequence of any other regulation passed under this Part. 
 (4) The Secretary of State may by regulations make such provision as he considers necessary for the purposes of determining compensation.'.—[Mr. Allan]
 Brought up, and read the First time.

Richard Allan: I beg to move, That the clause be read a Second time.
 As my hon. Friend the Member for Orkney and Shetland says, this is my last attempt to persuade the Government to accept something so that we can finish on a high note.

Patrick Mercer: Anything.

Richard Allan: Indeed. This new clause is everything: its scope is comprehensive. It refers to the entirety of common law, and one cannot get more comprehensive than that. It would establish two things in respect of the powers set out in clause 21(3)(b) and (c). Those paragraphs leap off the page because they say that emergency regulations can
''enable the requisition of confiscation of property . . . enable the destruction of property, animal life or plant life (with or without compensation)''.
 There may be circumstances in which compensation cannot be paid because of the nature of the incident that has occurred. That returns to the notion of rights and responsibilities: where the Government have the right to destroy confiscated property, animal or plant life, they should compensate wherever possible. The new clause would establish that. Subsection (1) would clarify what I hope the Minister is going to say, which is that existing rights under common law would be preserved. In other words, if an individual felt that they had a problem, they could take action under common law and nothing in the emergency regulations could strike that out. 
 Subsection (2) would establish a presumption in favour of compensation. The Government explicitly referred to that issue in their response to the Joint Committee. In paragraph 33, concerning interference of property rights without compensation, they cite the European convention on human rights as the primary safeguard. The ECHR would establish a presumption in favour of compensation. The Government would have to establish a case to destroy or confiscate property without compensation, or they would be in breach of the convention. 
 In terms of major sausages achieved in Committee—''sausage'' is shorthand for an amendment—the fact that the Government conceded the point that the regulations should have a certificate of compliance with the Human Rights Act is welcome. I hope that it means that regulations affecting property will similarly be in accordance with the ECHR. The new clause goes further in seeking to establish the presumption in favour. It looks bad, from the 
 Government's point of view, to have legislation that does not establish that presumption. 
 The draft legislation implies that it is arbitrary as to whether or not compensation is paid. It is not arbitrary, because Ministers must behave reasonably, in accordance with the convention rights, but the Bill does not imply a presumption in favour of compensation. The new clause therefore tries to establish that, and gives the Government a tool to do that. I do not expect it to be gleefully accepted by the Government immediately, but I hope that they will at least recognise that a question about compensation remains unanswered, and the point may continue to be queried if they do not accept that the Bill should be drafted more explicitly to establish a presumption in favour of paying compensation rather than paying it arbitrarily, at the toss of coin—''with or without'', as subsection (3) says.

Oliver Heald: On recent form I would expect the Minister to reply by saying that yes, of course, he will certainly be thinking of paying compensation in almost all circumstances, unless there are compelling reasons for not doing so. That is what the new clause says, but I do not expect him to accept it.

Douglas Alexander: After that less than charitable contribution, I shall choose my words carefully. If the whole reach of common law is encapsulated in new clause 3, I can make a suitably lengthy response, because it contains some important points that merit consideration.
 The Committee discussed compensation at some length during its sitting on 5 February. To recap briefly the Government's position, they accept that, where it is necessary in an emergency to damage a person's property or otherwise affect their financial position, it will often be appropriate to provide compensation. They also recognise that the availability of compensation will often make it easier in practice to operate emergency powers: people will co-operate more freely.

Michael Trend: The Minister said ''often''. Can he give the Committee an idea of the circumstance, real or imaginary, in which compensation would not be paid?

Douglas Alexander: The hon. Gentleman anticipates me. With his forbearance, I shall address exactly that point in a moment.
 To ensure that emergency regulations can provide compensation in appropriate cases, the Bill provides that they may enable action to be taken in relation to property ''with or without compensation'', as paragraphs (b), (c) and (k) of subsection (3) provide. However, to answer the hon. Gentleman's question, there are circumstances in which compensation is not appropriate; for example, where the loss is insurable or where the owner's negligence is to blame. If an owner wilfully infected cattle and thereby caused a major outbreak of an infectious and communicable disease, that would be a reasonable example of a circumstance in which the Government would not have to pay compensation. 
 The Human Rights Act 1998 will require compensation to be awarded in certain situations. Under article 1 of protocol 1 of the convention, any interference with property rights must strike a fair balance between the demands of the community or society and the need to protect the individual's fundamental rights. Compensation will often be a key aspect of a fair balance, especially where property has been taken on a permanent basis or destroyed.

Elfyn Llwyd: The Minister referred to article 1 of the first protocol. He did not finish the sentence, which includes the words
''except in the public interest''.
 In other words, the Government would be allowed, in the public interest, not to compensate. Will the Minister elaborate on that?

Douglas Alexander: As I said earlier, there could be circumstances in which it would be inappropriate for compensation to be paid, but the framework in which I must consider the new clause is that, as the Bill states, the Government will pay compensation.
 The new clause raised some specific concerns, such as the need expressly to protect common law or other existing rights to compensation. The Bill does not affect any right to compensation that the person may have by virtue of article 1 of the first protocol—the protection of property. 
 On the specific point about the need to ensure that compensation can be given under the regulations, I can tell the Committee that the regulations may provide for it in appropriate cases, as subsection (3) makes clear. Compensation may well be appropriate in other cases. There is nothing in the Bill to prevent it, but it is less likely. That is why the Bill concentrates on compensation for interferences with property and in circumstances where a person is required to carry out a function. 
 The suggestion that compensation be given as a matter of course if Parliament fails to approve the regulations is an interesting one. If the Government take action of which Parliament subsequently disapproves, it may be appropriate to consider compensation, but the regulations may have been rejected by Parliament for reasons unconnected with the provisions that have given rise to the claim for compensation; for example, the situation may have ceased to warrant the use of emergency powers. In addition, the existence of the provision might impede appropriate action in the interim between the regulations being made and their being considered by Parliament. 
 On the related point about the details of compensation, the Government agree that it may not always be appropriate or possible to set out the full details of the compensation scheme in the regulations. Those details may often be technical and take time to settle. However, it is unnecessary to provide expressly that the details of compensation may be set out in regulations. Clause 21(3)(a) provides that the regulations may confer a function on the Minister of the Crown or other person. That could include the function of determining the details of such a compensation scheme.

Richard Allan: That was a helpful response, and I beg to ask leave to withdraw the motion.
 Motion and clause, by leave, withdrawn. 
 Question proposed, That the Committee do report the Bill, as amended, to the House.

Douglas Alexander: Before you conclude the proceedings, Mr. Benton, I would like to say a word of thanks both to yourself for your distinguished chairmanship of the Committee's deliberations and to your colleague, Sir John, who has done great service to all of us through the work that he has done. I should also like to pay tribute to the work of my hon. Friend the Member for Lewisham, East (Ms Prentice) and the usual channels in servicing the work of the Committee.
 On a personal note, I pay tribute to my officials, who have worked hard to ensure that we have, hopefully, been in a position to provide answers to hon. Members. I reserve my final note of thanks for fellow members of the Committee. Notwithstanding some of the less temperate words expressed this afternoon, we have made significant progress in a supportive environment for Ministers offering explanations that Committee members have sought. 
 My earlier point was a serious one: the Committee might have been more exciting, but it would have been less advantageous, had we not anticipated, between the production of the draft Bill last July and the publication of the Bill we have debated today, many of the points to be raised. The pre-legislative scrutiny process, combined with the Committee proceedings, has progressed the Government's thinking, notwithstanding some of the comments that we have heard, and I am genuinely grateful for the contribution of members from all parties in the Committee for their endeavours in that regard.

Oliver Heald: I join in the thanks to you, Mr. Benton, and Sir John for the very courteous, polite and firm way in which you have conducted our proceedings. It was particularly inspired to arrange for the fire alarms to go off while we were discussing forest fires, and for my hon. Friend the Member for Newark to spill water all over our papers while we were discussing flooding. I also enjoyed the references to marsupials, toothless tigers and the odd sausage and chipolata.
 This has been an extremely pleasant Committee, and I extend my thanks to the Minister for the courteous way that he has dealt with our attempts to amend the Bill. We do not feel that we have made much progress, but having said that I agree with the Minister about pre-legislative scrutiny. It is a very 
 worthwhile process, which we support. We would like to see more draft Bills go through that process, but we would also like the Committee proceedings to result in a few amendments. 
 I thank the Clerks, Mr. Healey and Mr. Patrick, for all that they have done to assist us. I also thank the police, the Badge Messengers, those recording our proceedings, and the Minister's officials who have been very kind in preparing and giving briefings to us through the Minister. Finally, I thank the Government Whip, the hon. Member for Lewisham, East, who has been a pleasure to ''usual channel'' with.

Richard Allan: I, too, thank you, Mr. Benton, Sir John and all the staff on the Committee, particularly the Minister and the Under-Secretary, who has clearly been suffering from a cold, but performed admirably given the circumstances. The Committee has been enjoyable.
 To finish on a note of complete concordance, I can tell hon. Members that every time I serve on a Committee considering a Bill that has been through the pre-legislative process, I am impressed by the value that is invested in that scrutiny. I would encourage the Government to go further with the process, because it gives a focus to our debates. We have been reasonably well focused over the past couple of weeks, unlike those Committees considering Bills that have not had the benefit of pre-legislative scrutiny. Again, I thank everyone who has taken part.

Elfyn Llwyd: May I thank you, Mr. Benton, and your co-Chairman, Sir John, for your able chairmanship? I echo what has been said about the usefulness of the pre-legislative process, and about the temperate way in which have conducted ourselves over the past few weeks. May I advise the hon. Member for Newark through you, Mr. Benton, that I have a cousin in north Wales who has a sausage factory?

Joe Benton: I thank all members of the Committee for the courtesy that they have extended to Sir John and me during our proceedings. It has been a pleasure to chair the Committee. I shall ensure the Committee's remarks get back to Sir John.
 I thank the learned Clerks, and the Hansard staff, and everyone else connected with the smooth running of the Committee. 
 Question put and agreed to. 
 Bill, as amended, to be reported. 
 Committee rose at sixteen minutes past Five o'clock.